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Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

This matter is before the Authority on an exception to an award of
Arbitrator L. Lawrence Schultz filed by the Union under section 7122(a) of the
Federal Service Labor-Management Relations Statute (the Statute) and part 2425
of the Authority's Regulations. The Agency filed an opposition to the Union's
exception.

The Arbitrator's award granted the Agency's motion to dismiss the
Union's grievance because the Union did not pursue the grievance with due
diligence.

We conclude that the Union has failed to establish that the award is
deficient under section 7122(a) of the Statute. Accordingly, we deny the
Union's exception.

II. Arbitrator's Award

The Union invoked arbitration over a grievance concerning a
reduction-in-force and an initial hearing date was selected by the parties.
Subsequently, the Agency requested that the hearing be postponed. Thereafter,
by letter dated May 24, 1995,(*) with a copy to the Union, the Agency notified the Arbitrator
that a September 14 hearing date had been mutually agreed to by the parties. On
September 6, the Agency sent a letter of confirmation to the Arbitrator
concerning the hearing, also with a copy to the Union. On September 11, the
Arbitrator was informed that the Union had not been timely notified of the
September 14 hearing date, that it was not prepared to go forward, and
that it desired a continuance of the hearing. The Agency then filed a motion to
dismiss the grievance on the ground that the Union had failed to justify its
failure to proceed with the hearing on September 14.

The Arbitrator found that the "actions and inactions" of the Union
demonstrated "an absence of due diligence." Award at 4. In so finding, the
Arbitrator rejected the Union's contention that it had not received notice of
the September 14 hearing because it had relocated its offices. The Arbitrator
noted that the office move had occurred in February and that the notice of
hearing was sent in May. In addition, according to the Arbitrator, the Union
failed to make a good faith effort to comply with the parties' agreement to
hold the hearing on September 14, and there were no "mitigating factors" in the
Union's favor. Id. at 5.

Based on the foregoing, the Arbitrator granted the Agency's motion to
dismiss the grievance.

III. Positions of the Parties

A. Union's Exception

The Union contends that the award is contrary to law because it
"dismisses an arbitration without granting a hearing." Exception at 1. The
Union attached to its exceptions a letter to the Arbitrator in which the Union
claimed that it had no notice of the September 14 hearing date until September
6.

B. Opposition

The Agency contends that the Union failed to properly serve its
exception by certified mail or in person as required by section 2429.27(b) of
the Authority's Regulations. Specifically, the Agency claims that it received
an incomplete copy of the exception by regular mail. On the merits, the Agency
maintains that the Union has failed to establish that the Arbitrator erred in
dismissing the grievance.

IV. Analysis and Conclusions

A. Preliminary Matter

It is clear that the Agency timely received the Union's exception, and
the Agency does not claim, and there is no basis on which to conclude, that the
Agency was prejudiced either by the manner in which the Union's exception was
served or by the Union's alleged failure to include certain attachments with
the exception mailed to the Agency. Therefore, and in view of our decision
herein, we will consider the Union's exception. SeeU.S. Department
of Defense, Defense Logistics Agency and American Federation of Government
Employees, Local 2144, 39 FLRA 269, 272 (1991).

B. The Award Is Not Based On a Nonfact

We construe the Union's exception as a contention that the award is
based on a nonfact, specifically, that the Union was aware of the September 14
hearing date prior to September 6.

It is well-settled that, to establish that an award is based on a
nonfact, a party must show that the central fact underlying the award is
clearly erroneous, but for which the arbitrator would have reached a different
result. U.S. Department of the Air Force, Lowry Air Force Base, Denver,
Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA
589, 593 (1993). The mere fact that the appealing party disputes an arbitral
finding does not provide a basis for concluding that an award is based on a
nonfact. American Federation of Government Employees, Local 1923 and U.S.
Department of Health and Human Services, Health Care Finance Administration,
Baltimore, Maryland, 51 FLRA 576, 579 (1995). The Arbitrator concluded, for
several reasons set forth in his opinion, that "[t]he Union was on notice" of
the September 14 hearing date prior to September 6. Award at 4. The Union has
not demonstrated that this conclusion is clearly erroneous. Accordingly, the
Union has not demonstrated that the award is based on a nonfact.